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Legalizing Marijuana - Off-Duty Use - An Employer’s Quandary

More and more cities and states are legalizing the use of marijuana for medical and recreational use. The good news is that means in those jurisdictions the local and state police will not arrest you if your use conforms to the local/state law-medical use states require a prescription and recreational use laws usually limit the amount of marijuana one can possess. In addition, federal prosecutors, at least under the current administration, will not prosecute you for use which is legal under state and local laws.

Now the bad news. Marijuana use is still illegal under federal law, 21 U.S.C. § 801et seq., since it is listed as a schedule 1 controlled substance. That means its use is not protected by the Americans With Disabilities Act, 42 U.S.C. § 12101et seq., (“ADA”) because the ADA does not protect the current use of an illegal drug. Moreover, most employees are at-will employees, so they can be fired for good cause, bad cause, or no cause. Thus, if an employer wants to fire employees who use marijuana away from work, it is likely that the employer can legally do so.

That said, time often proves that the law is not always as clear as it seems, and courts can apply unexpected interpretations to statutes. Most lawyers know never to say never. So employers may be cautious at the beginning of this new stage in the history of marijuana use and the law. We have come a long way-from the days when marijuana use resulted in 25-year prison sentence, to now its use is actually legal under some local and state laws. Where the future will take use remains to be seen.

Some may predict that the President or Congress will decriminalize marijuana use on the federal level. The federal controlled substance abuse law allows the Attorney General to change the schedule status of drugs, but that requires medical certifications which are unlikely to be forthcoming. 21 U.S.C. § 811. The Congress could of course modify the federal statute to legalize marijuana under federal law, but with a Republican House and Senate that will not occur during the next two years, and has yet to even gain much support with the Democrats.

So where could changes occur? Well, wherever employees are not at-will employees, the situation could change, for example, union contracts usually only allow employees to be fired “for cause.” The unions could negotiate a collective bargaining provision which excludes off-duty marijuana use from a “cause” which justifies termination of employment. The problem, however, is twofold. First, it is unlikely unions would tend to value this as a priority in negotiations. The unions usually focus on wage rates, fringe benefits and job security. Second, employers would be hesitant to agree to such a provision since marijuana testing does not usually date the use – it would be difficult to differentiate between current use on the job, which no employer is going to tolerate, and off-duty use in the past.

This same issue may arise under the ADA. If I was using marijuana in the past for a medical disability, but I am no longer using marijuana, such past use might be protected by the ADA. Remember, while the ADA does not protect current use, the ADA might protect past use. Indeed, in this way, a past heroin user who is in rehab is likely protected by the ADA. He has a disability – addiction to heroin, and he is no longer a current drug user. But this brings us to the same problem – how does one differentiate between current and past use, if the available testing cannot tell when the marijuana was last used. If testing is developed which allows the results to date the last use, this may open this issue up ripe for litigation under the ADA.

Another area for expansion of the effects of marijuana legalization laws is where federal law plays no part. For example, higher level executives are often not at-will employees, but rather often have an employment contract which only allows termination of employment “for cause.” Much like a union, the executive could negotiate his contract to exclude off-duty marijuana use from the definition of “cause.” There are, however, two problems with this approach. First, again, the limitation of testing to determine when the marijuana was last used, and thus to establish it was off-duty use, would need to be addressed in the contract provision. Second, many companies may decide they simply do not want to hire an executive who uses marijuana. Thus, asking for a contract protection for off-duty marijuana use may cause you not to be hired and thus not to receive any contract.

Another more likely example where federal law plays no part is unemployment compensation. Most unemployment compensation laws require that unemployment compensation be paid unless the employee was fired not just for good cause, but usually for gross misconduct. A Michigan court of appeals has held this cannot include marijuana use which was legal under Michigan state law. Dept. of Lic. And Reg. Affairs v. Braisha, No. 313932 v. Kemp, No. 315441 and v. Kudzia, No. 318344 (10/24/14). The three fired employees had state cards which allowed them to use marijuana for medical purposes. There was no evidence they were intoxicated at work or that the marijuana affected their job performance. While that did not prevent their employers from firing them under their drug free workplace policies, the Court of Appeals held the state law prohibited any penalty by the government under state law, and that included loss of unemployment benefits. So in Michigan, while the employer can fire you for off-duty marijuana use, (See Arias v. Wal-Mart Stores, 695 F.3d 428 (6th Cir. 2012) (holding the Michigan law does not restrict private employees), you will still be entitled to unemployment compensation – unless the Michigan Supreme Court accepts an appeal of the Court of Appeal decision.

In a similar decision, a New Mexico court held that under the state workers’ compensation law, an employer and its insurer had to pay for the use of medical marijuana to treat pain from a back injury incurred at work, because New Mexico allows the medical use of marijuana. Vialpando v. Ben’s Automotive Services and Redwood Fire Casualty, No. 32,920 (N.M. Ct. of Appeals 5/19/14). Workers’ compensation laws required insurers to pay for “reasonable and necessary medical care” for any work injury, and since medical use of marijuana is legal in New Mexico, and a doctor prescribed it for pain control of a work injury, the Court held the insurer had to pay. One irony is the medical marijuana may cost the insurer less than alternative narcotic pain killer drugs that are all too often prescribed for pain control in workers’ compensation cases.

It seems clear we are well down a path of change, but where it will lead us is unclear. To those who believed that off-duty marijuana use cannot be used as a basis for job termination by private employers, their celebration is mistaken. But for employers to believe there is absolutely no risk in basing a termination on such off-duty marijuana use, and who fail to recognize that the legal landscape is changing, they also may be in for a surprise. We have only seen the first chapter of the book, more is to follow.

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